98

A PETITION is being extensively circulated throughout the country, praying Congress to enforce the provisions of section 5627 of the Revised Statutes of the United States, which provides that "the United States may, for postal, military, or other purposes, purchase all the telegraph lines, property and effects of any or all companies acting under the provisions of the act of July 24, 1866, entitled, An Act to aid in the Construction of Telegraph Lines, and to secure to the Government the use of the same for postal, military and other purposes;' or under this act, at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the Postmaster-General of the United States, two by the company interested, and one by the four previously selected." The petition states that the Western Union Telegraph Company has filed its assent to these provisions. The grounds of the petition are, that the telegraph belongs really to the post-office department; that it should be incorporated therewith, and worked for the benefit alike of the government and the people; that the government alone can secure to us the freedom of the press and the sanctity of private correspondence, that the privileges extended to the Western Union Telegraph Co. have been grievously abused; that its exactions have become unreasonable; that the enormous extent to which its share capital has been increased, and the creation of a large bonded debt, have necessitated the high rate charged, notwithstanding the reductions made by other companies; that the government could not be obliged to pay more for these lines than it would cost to duplicate them; that a uniform rate as low as twentyfive cents can be made for messages throughout the United States, the same being the rate to Canada and England; and that with an increase of business, such as has followed cheaper postage and the postal cards, a still lower rate can be made. We hope that this subject will receive the earnest attention of Congress as soon as the political troubles are cleared away. The policy which has obliged all civilized governments to take charge of post-offices and post-roads would seem to apply equally to communication by telegraph; and, while on general principles we are opposed to the absorption by government of private enterprises, we hope to see all telegraph lines owned by the government, and made adjuncts of the postoffice department. We are convinced that the government could give, without a loss to the public treasury, a rate very much lower than that afforded

by the present companies. The real difficulty in the way of the scheme (and it is a substantial and formidable difficulty), consists in the fact that the measure would greatly increase the already enormous patronage of whichever political party happened to be in power, and it might thus become an engine of corruption, from which would flow evils which could not be counterbalanced by the benefits of cheap telegraphy. It is doubtful whether, in the hands of the government, private correspondence would be more secure than at present. One can easily foresee that, under the manipulation of an unscrupulous postmaster-general, directed for political purposes, the telegraphic correspondence of public men might be invaded to an unlimited extent.

A BILL has been introduced in the Legislature of Missouri to provide for the publication of the decisions of the supreme court of the state. It provides that the attorney-general, state auditor, and secretary of state shall contract with some suitable person to publish the decisions for a period of five years. The person entering into the contract shall furnish the number of volumes needed by the state at the actual cost, with ten per cent. added, not to exceed $2.50 per volume. The price to the profession shall not exceed $2.50 per volume, and the publisher shall keep on hand a sufficient number to enable the legal profession to obtain them at that price. The volumes shall be published within ninety days after the rendering of the decisions, if there are sufficient decisions to make a volume of 600 pages. The publisher is required to give a bond in the sum of $10,000. The bill provides for the appointment, by the supreme court, of a reporter, at a salary of $2,500, after the taking effect of this bill. We are satisfied, from a somewhat careful examination of the subject, that if the reporter is paid by the state, and not, as at present, by the publisher, the reports can be published in good style, and furnished at this price to the profession, leaving a small profit to the publisher. We are decidedly in favor of cheap reports; but we must say, greatly as we desire to promote the interests of the legal profession, that we can not see the propriety of paying an officer $2,500 a year out of the public treasury in order that lawyers may have cheap books. If a member of the legislature should seriously propose that the state should pay the manager of an agricultural manufactory a salary, in order that farmers might get their agricultural implements for the net cost of the materials and manufacture, he would be instantly hooted down; and we can not see why lawyers should be entitled to the benefit of a rule which the craziest visionary would not think of applying to any other class of people in the community. We hold that the salary of the reporter should not be paid by the public, but that it should be paid, as now, by the publisher, or else, that the reporter should have the privilege of publishing his own reports, and of selling them at a fixed price. We are satisfied that, if the publica

record in A, so defectively executed as to preclude its being read in evidence as a legal title in A, and C goes into possession of the land, claiming to hold the title of such lands so of record through a deed from a person calling himself A, prima facie C is the owner of the equitable title, which so stood in A of record; and in ejectment by B, who has title from the A who had such equitable title of record, against C, for the land, prima facie both parties claim from a common source, and the question to be determined is, has B or C the superior title from such common source?

E.

A POINT IN THE LAW OF EVIDENCE.

In Mr. May's edition of Greenleaf on Evidence, in a note to sec. 201, vol. 1, p. 238, the rule is stated, that where a party produces the letter of another, purporting to be in reply to a previous letter from himself, he is bound to call for and put in the letter to which it was an answer, as part of his own evidence; and the case of Watson v. Moore, 1 C. & K. 626, is cited as an authority for the rule. It is strange that the editor in giving such prominence to a ruling at nisi prius, should have overlooked every other case on this point. Both the American and English reports contain decisions directly conflicting with the rule as laid down here. In Newton v. Price, 41 Ga. 186, it is held, that one of a series of letters, written during a correspondence as to the same transaction, and in reply to one written by the plaintiff, may be introduced in evidence by the defendant. In Brayley v. Jones, 33 Ia. 508, objection was made by the defendant to the introduction of a letter in evidence, because the letter, to which it was a reply, was not called for by the plaintiff and put in evidence. The court say: "This may be the rule, if the first letter is necessary to the understanding of the one offered, or will aid in the better understanding of it; or, where it appears that the answer may be misunderstood, without the letter, to which it is a reply, being read. But if the letter, offered in evidence, contains distinct and independent propositions or statements of facts, which can not be misunderstood if read alone, and are in no way dependent upon the first letter, we are of opinion that it is admissible without the condition suggested by counsel." See also Bryant v. Lord, 19 Minn. 396; Lester v. Sutton, 7 Mich. 331. In Cary et al. v. Pollard, 14 Allen, 285, where the defence to an action upon several promissory notes was, that they were given in payment for intoxicating liquors, sold to the maker out of the state, for the purpose of being resold within the state, in violation of law, it was held that the defendant might put in evidence, in order to show this purpose, a letter written by him to the plaintiffs enclosing one of the notes, and stating that it was in payment of whiskey, although the letter referred to a letter received from the plaintiffs with invoices, which letters and invoices were not produced. Stone v. Sanborn, 104 Mass. 319, was an action of the kind in which letters usually play a prominent part, viz., an

action for breach of promise of marriage. The plaintiff's counsel offered in evidence some of the defendant's letters, and some of the plaintiff's, making selections of such as he desired to put in. The defendant objected on the ground that, the correspondence being offered to prove the engagement and the breach of the same by the defendant, the whole should be put in, and not a part; that the plaintiff, having voluntarily destroyed a portion of it, or if not destroyed, refusing to produce the whole, should not be permitted to read portions of it. The trial-judge overruled the objection, and permitted the plaintiff to read such letters of either party as she pleased. Some letters were read, which appeared to be in reply and in reference to the contents of a letter from the other party, which was not put in. On appeal, the ruling was affirmed by the supreme court. The court say: "If letters, which she introduced, showed that they were written in reply to other letters, she might doubtless give in evidence those letters too, as tending to explain the replies. She was not, however, bound to do so, but might leave it to the defendant, upon crossexamination or otherwise, to offer any competent evidence of them or their contents, if he wished. If the ruling of Chief Baron Pollock, in Watson v. Moore, 1 C. & K. 625, cited for the defendant, that the party offering the reply in evidence should put in both the letters or neither, was anything more than an exercise of discretion as to the order of proof, it is more than counterbalanced by the opinions of Lord Kenyon, in the earlier case of Barrymore v. Taylor, 1 Esp. 326, and of Baron Parke, in the later one of De Medina v. Owen, 3 C. & K. 72." In Barrymore v. Taylor, 1 Esp. 326, which was an action to recover the balance of a sum due, the plaintiff offered in evidence letters from defendant containing promises to settle. The defendant objected to their being read, unless letters, to which they were answers, were produced, as they would explain the transactions and account for the promises. Lord Kenyon said that there was no rule of law that required such evidence; that the letters, to which these were answers, were in defendant's hands, and, if he thought them necessary to explain the transaction, he might produce them. It is very unsafe to state a rule on the sole authority of a nisi prius decision; it is still more extraordinary that, except Watson v. Moore, not one of the cases to which we have referred is to be found in the last edition of Greenleaf.

STARE DECISIS.

The pious injunction for which we are indebted to our ancestors, who lived in that age of wisdom hidden from us by the impenetrable veil of "time immemorial," to abide by decisions, and not agitate matters which had become established, has come to us more or less discredited by modern criticism. No one believes in the fiction that the rules of the common law were established by legis

lation, the date of which has been lost or forgotten. There are none of its doctrines of higher origin, in their application to human affairs, than the dictum of a judge. Barring those basilar principles of abstract justice, upon which the system is founded, and which command recognition from every intelligent being by the force of their immutable truth, we are indebted to judicial legislation alone for all those rules of English and American jurisprudence, whether legal or equitable, which the doctrine of, stare decisis regards as settled. This being the case, seems to give point to the oft-repeated words of caution, that have fallen from the bench, to adhere closely to former decisions, as the only sheetanchor by which the judicial mind is to be prevented from drifting into the shoreless sea of speculation. By following this course, judges may hope to avoid what seems so shocking to the judicial mind— enacting laws, instead of construing and declaring them. The learned commentator who gave to English law its first methodical embodiment, says that, though the reason of rules and precedents be not obvious at first view, still we owe such deference to the judges of former times as not to suppose that they acted wholly without consideration. 1 Bl. 70. Chancelor Kent admonishes us, that a solemn decision upon a point of law, arising in any case, becomes an authority in a like case, because it is the highest evidence we can have of the law, applicable to the subject. 1 Kent, 475–6, citing 16 Johns. 402; 20 Id. 722; 1 P. Wms. 452; 7 T. R. 419; 3 B. & Ad. 17. And again, in Murray v. Ballou, 1 Johns. Ch. 566, a chancery suit, the learned Chancelor expresses his adhesion to the authority of precedents. Lord Mansfield, the father of our commercial law, has frequently had occasion to observe, that the certainty of a rule is often of more importance than the reason of it. In Wilkes' case, Burrow, 2542, he says: "We must act alike in all cases of like nature. What we do now, ought to be agreeable to former precedents, and will become a precedent in future cases of like kind." In criticising the declaration of Mr. Chief Justice Powell, that "nothing which is not reason is not law," the author of Jones on Bailments pronounces it "a maxim in theory excellent, but in practice dangerous; as many rules, true in the abstract, are false in the concrete; for since the reason of Titius may, and frequently does, differ from the reason of Septimus, no man who is not a lawyer would ever know how to act, and no man who is a lawyer would know how to advise, unless courts were bound by authority, as firmly as the Pagan deities were supposed to be bound by the decrees of fate." We are not fully advised as to how firmly the " Pagan deities" were bound; but "fate" is a strong word, when used to illustrate that which is absolutely fixed and unalterable. Stare decisis could hardly desire a more zealous advocate. But Lord Kenyon surpasses his predecessors in his fealty to precedents. Said he: "It is my wish and my comfort to stand super antiquas vias. I can not legislate; but, by my industry, I can discover what our predecessors have done, and I will tread in their

footsteps." The Latin portion of the above quotation might not convey to the mind of the legal student that the distinguished jurist proposed to stand upon the ancient ways; but the plain English with which he paraphrases the idea can not be doubted. In the case of Bates v. Relyea 23 Wend. 340, Judge Cowen takes occasion to express his respect for prior decisions, by comparing them to a convincing series of experiments in any other branch of inductive philosophy, and says that, so long as they are unremoved, they form the absolute law of the case, and enter with very decisive effect into the body of precedents.

The above selections of judicial expressions, favorable to the sacredness of decisions as authorities to govern subsequent litigation, will fairly represent the general views of both courts and commentators upon this subject, when they appeal to decided cases. There seems to be, running through the entire body of our judicial decisions, a feeling of apprehension that the judges, unless restrained by some consideration of respect for authorities, would take the bit in their mouths, and, setting up their own wills as the law, usurp all the power of the legislative branch of government. This apprehension is groundless. The courts have, for the most part, been much more docile and obedient to the written law than legislative bodies have been considerate of the jurisdiction of the courts.

It might be a sufficient answer to the foregoing arguments, by which the absolute sacredness of decided cases is supported, to refer to contrary opinions expressed by other judges upon the same subject; but an examination of the authorities already cited will show that, in most instances, their assertions are qualified so cautiously and carefully, that the rule becomes uncertain, fluctuating and intangible. For example, Blackstone modifies his statement of the doctrine as above, by saying, "unless flatly absurd or unjust; " Kent qualifies his adhesion to the authority of decided cases by saying, that the decisions ought not to be disturbed, "unless it can be shown that the law was misunderstood or misapplied in the particular and never by the same court, except for cogent reasons; " and has gone so far as to say, "that even a series of decisions is not always conclusive evidence of what is law; and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change of it." 1 Kent, Com. 477.

case,

As a significant fact, indicating the capriciousness of courts, notwithstanding the traditional sacredness of precedents, he calls attention to the large number of cases which even then had been overruled, criticised and modified in their application. See Greenleaf's volume of Overruled Cases. Pattison's Digest of Missouri Reports, including the 49th volume, contains a list of about two thousand cases criticised, some of them overruled, others questioned, doubted, or modified, exclusive of a

large number of the decisions reported, which have been dodged by the Supreme Court, or quietly ignored.

Lord Mansfield has not hesitated to declare, that the law of England would be an absurd science, were it founded only upon precedent; and even his successor, Lord Kenyon, who, we have seen, planted himself so sturdily upon the doctrine in question, as upon a rock, could not keep his judicial hands off the decisions by which the law had already been declared. There is a glaring inconsistency between this rule, in its bold statement, and the modified forms of it by which the courts have endeavored to strike out a safe middle path, that can scarcely fail to arrest the attention of the inquirers. To say that precedents are to be followed, unless flatly absurd or unjust, is equivalent to saying that they are to be followed when their destination is to the conclusion already fixed upon by the judicial mind they are expected to lead. It amounts to much the same thing as saying, that they are not to be followed at all. The ground between an absolute submission to the authority of adjudged cases, and the exercise of a sound discretion and cultivated judgment in dealing with restraints fixed by the dicta of predecessors, is too slippery to stand upon, and at the same time too wide to straddle. If the rule has any real existence, as applied to the generality of litigated cases, regardless of its effect upon vested proprietary rights, the modifications should be disregarded. They are neither more nor less than thinly masked negations. The very moment that the judge assumes to question the rule laid down in a case decided, whether it be just or unjust, reasonable or absurd, that moment he denies the validity of the rule as such. If he professes to adhere to it, the only matter of legitimate inquiry for him is, whether it was so decided?

It may be fairly and legitimately claimed that, when by changing the rules of common law, as established by decided cases, new rules of property would be introduced and vested rights disturbed, the policy of the law would be against such change. It might be admitted, even, that the minds of judges should not be above yielding to the influence of solemn decisions of well-considered cases, and that doubtful questions might find a proper solution in the consultation of precedents. If the judge is undecided as to which of two courses would be right and just upon principle, and according to sound reason, it would always be best that he should be guided by the decisions of other courts upon like questions. Little more than this can be said in behalf of the sacredness of precedents. The bare admission that the rule may in some cases be safely departed from, when to follow it would be to perpetuate wrong, to subvert the principles of natural justice and commit the court to an absurdity, is an acknowledgment that there is a standard by which precedents are to be measured and weighed, above and superior to the authority by which they are established.

The comparison quoted above, between decided

cases and convincing experiments in inductive philosophy, is unfortunate for the doctrine supported by the judge. Whenever any of these cast-iron rules of the common law come in contact with natural science, the rules are injured by the attrition. One of the first canons of scientific investigation is, that nothing is to be taken as true, merely because it is supported by authority. If it could be demonstrated that there is a shorter distance between two points than a straight line, no one would be silly enough to set up against the new discovery, that the axiom had been accepted and acted upon from time immemorial. The decision of a case at law or in equity is as unlike a philosophical experiment as could well be imagined. Time was when every innovation upon accepted scientific theories was met by howls of denunciation and by the most relentless persecution. But, happily, the conservatism which regarded with such superstitious reverence the authority of precedents in the domain of science, has been broken, and now nothing that exists is too sacred to become the subject of inquiry and investigation.

Judge Comstock, in the case of Church v. Brown, 21 N. Y. 335, in rendering judgment, whereby he expressly overruled the case of Brewster v. Silence, 4 Seld. 207, and Draper v. Snow, 20 N. Y. 331, declares the doctrine, which should commend itself to both bench and bar as eminently sound and safe: "When the rules laid down by the courts become the laws which sustain titles and contracts, they are, in general, to be sacredly adhered to; but when they can be used only as instruments of destruction, error ceases to be sacred, and principles and truth ought to be re-asserted."

The doctrine of Stare Decisis, has outlived its influences, if it ever had any. Courts can not wait for legislative bodies to amend the written law SO as to meet all emergencies. Emergencies arise faster than legislatures are able to move. These patriotic assemblies have not the time to spare from their multifarious engagements, to revise the laws and enact new measures for the protection of life, the security of property, the preservation of private rights and the redress of private wrongs. Their time is monopolized to such an extent with grown duties, that these trifling and hum-drum matters are left to the courts. But the changes which have been going on since time immemorial, the immense libraries of adjudged cases which have been preserved in the reports, tend greatly to disembarrass the question of its old-time one-sidedness. Courts are not now driven to the alternative of deciding contrary to precedent, or contrary to common sense. The question has pretty nearly resolved itself into a choice of authorities. If an early case decides a question in a manner shocking to his sense of justice, the judge has only to search long enough to find a late case decided the other way. If a late case is the obstacle, he has only to look back far enough, and the chances are that he will find something nearer the fountain-head of the common law-"time whereof the memory of man